12 | Investor Guide to Europe 2014
possession of the real estate as well as the transfer of risk; the
seller’s guarantees; the applicable zoning and urban planning
laws; any condition precedent (soil pollution, permits, loan
agreement, energy performance certificate, etc.)
Î
notarial deed of sale –
Asset deal
•
Is usually the deed according to which ownership is actually
transferred from the seller to the buyer; it must be notarised
and is the fulfilment agreement of the private deed.
•
As a principle, there is no re-negotiation of the terms and
conditions of the private deed.
•
The notarial deed of sale will be transcribed in the mortgage
registry by the notary public.
CoMMERCIaL LEaSES
CIvIL LEaSES (offICES)
Governed by specific provisions of the BCC and other laws, such
as tax or environmental regulations.
In principle, office lease contracts are governed by BCC’s specific
provisions.
Î
form - Duration - Rent
•
No legal minimum or maximum duration; the most common is
a nine-year lease with a break option for one or the other party
at the end of each three year period (by giving prior notice to
the other party).
•
Rent (which is VAT-exempt) is an essential element of a lease
(“No rent, no lease”)
Î
(Landlord) Lessor’s principal obligations
•
To deliver and maintain the leased real estate according to the
use for which it was leased.
•
To allow the lessee to enjoy peacefully its right of use and
occupation over the leased real estate.
•
To be responsible for and bear the charges of major repairs
and any damage caused by an Act of God.
•
To guarantee the lessee any and all (latent) defects of the
leased real estate.
Î
(Tenant) Lessee’s principal obligations
•
To use the leased real estate according to the standard of
care of a “
bonus pater familias”
in compliance with the agreed
purpose.
•
To pay the rent and, as the case may be, charges related to the
leased real estate.
•
To be responsible for damage caused by fire, unless he/she
proves that he/she did not cause the fire.
•
At the end of the lease, return the property in the state that
is described in the incoming inventory of fixtures, which is
mandatory.
•
To be liable for deterioration and losses caused by the act of
persons supervised by the lessee or by its sub-lessee, if any.
○
The lease contract binds third parties, including any new owner,
unless otherwise stipulated in the lease contract (which is
unusual) and on condition that the contract has a “fixed” date.
The registration of the lease will give the lease contract a “fixed”
date.
CoMMERCIaL LEaSES (RETaIL)
BCC’s specific provisions will apply to commercial (retail) lease
contracts where the Commercial (retail) Lease Act (“CLA”) of 30
April 1951 does not deal with or cover a specific issue.
The CLA’s provisions are mainly mandatory, i.e., they apply, as a
matter of principle, irrespective of the agreement by the parties;
the protected party may waive its right to invoke such a manda-
tory provision, but exclusively once the relevant right has arisen.
The CLA applies to real estate lease contracts in which the lessee—
with lessor’s consent—devotes to carrying on a retail business or
activity of an artisan who is directly in contact with the public.
Î
Duration - Rent
•
The duration may normally not be less than nine years.
•
The lessee may terminate the agreement at the end of each
three-year period with six months prior notice; in certain cir-
cumstances the lease contract entitles the lessor to terminate
the agreement at the end of each three-year period.
•
The parties may terminate the lease contract early by mutual
consent provided that this consent is recorded in a notarial
deed or in a statement made in before a competent judge.
•
The competent judge may—under specific conditions and on
request of the lessee or the lessor—review or adapt the rent at
the expiration of each three-year period, and this based on the
principles of fairness and equity.
Î
Lease renewal
•
The lessee is entitled—with a preferential right over any other
person—to renew its lease for the continuation of the same
trade.
•
This right is limited to three renewals, as a principle each for a
term of nine years.
•
The renewal is governed by very specific deadlines and pro-
cedure. The formalities laid down by the CLA must be strictly
complied with.
•
Any disagreement between the parties with respect to the
conditions of the renewed lease contract will be submitted to
a judge who settles the dispute according to the principles of
fairness and equity.
•
The lessor may only refuse to renew by invoking one of the
grounds listed in the CLA, and even then an indemnity pay-
ment must be paid in some scenarios.
•
This indemnity (one, two, or three years’ rent) is set by the
CLA; the judge may grant more than these sums if the lessee
can demonstrate that the value of its loss is greater than the
indemnity.
Î
Renovation/alteration works by the lessee
•
BCC provisions apply to those works that do not affect the use
or the structure of the real estate.
